Davis v. Dacus

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Charlotte Davis and Roy Davis, Jr.,       
Appellants,

v.

Barbara Jean Dacus and Unisun Insurance, Defendants

Of whom Barbara Jean Dacus  is the       
Respondent.

Appeal From Beaufort County

Thomas Kemmerlin, Jr., Special Circuit
Judge

Unpublished Opinion No. 2004-UP-521

Submitted September 15, 2004 – Filed
October 14, 2004

AFFIRMED

James H. Moss, of Beaufort, for Appellant.

E. Mitchell Griffith, of Beaufort, for Respondent.

PER CURIAM: In this declaratory
judgment action, Charlotte and Roy Davis appeal from the trial court’s grant
of summary judgment in favor of Barbara Jean Dacus.  We affirm.
[1]

FACTS

Both parties stipulate to the following
facts of this case.  On November 23, 1998, Dacus was driving the Davises to
an appointment in Savannah, Georgia when they were involved in an automobile
accident. Dacus, an employee of the South Carolina Department of Social Services,
was driving a DSS vehicle and was acting within the course and scope of her
employment at the time of the accident. 

After the accident, the Davises filed suit
against Dacus and DSS, seeking recovery for injuries they sustained.  Dacus
moved to dismiss the case, arguing the complaint failed to state a cause of
action against her because she had immunity under the South Carolina Tort Claims
Act, S.C. Code Ann. §§ 15-78-10 to -200 (Supp. 2003).  The trial court agreed,
stating: “The Defendant Dacus cannot be joined in this action.  If there is
some possibility of insurance coverage it must be established other than in
this law suit [sic].”

Subsequent to that order, the Davises brought
this declaratory judgment action, asking the court to declare that Dacus’s liability
and underinsured motorist coverage, provided by Unisun, is “valid and binding
upon the insurance company and the insured, and requiring the insurance company
to pay amounts under the liability provision of the policy or the underinsured
motorist provisions of the policy.”  Dacus and Unisun filed a motion for summary
judgment, arguing that because Dacus is immune from liability pursuant to the
Tort Claims Act, there could be no direct suit against her insurance company. 
The trial court granted the motion.  The Davises filed a motion to reconsider,
which the trial court denied. This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary
judgment motion, the appellate court applies the same standard which governs
the trial court under Rule 56(c), SCRCP.  Baughman v. Am. Tel. & Tel.
Co., 306 S.C. 101, 114-115, 410 S.E.2d 537, 545 (1991).  Pursuant to Rule
56, SCRCP, summary judgment is proper when “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a
matter of law.”  “In determining whether any triable issues of fact exist, the
evidence and all inferences which can be reasonably drawn from the evidence
must be viewed in the light most favorable to the nonmoving party.”  Strother
v. Lexington County Recreation Comm’n, 332 S.C. 54, 61, 504 S.E.2d 117,
121 (1998) (citation omitted).

LAW/ANALYSIS

The Davises argue the trial
court erred in granting summary judgment in favor of Dacus and her insurance
company.  Specifically, the Davises claim that the Tort Claims Act does not
prevent them from recovering under Dacus’s automobile policy because the insurance
coverage is based in contract, and contractual liability is expressly excluded
from the Act.  We disagree. 

While section
15-78-20(d) of the Tort Claims Act does expressly exclude contractual liability
from immunity, there is no contractual relationship between the Davises and
Dacus or Unisun.  Rather, Dacus’s liability to the Davises, if such liability
exists, would sound in tort.  However, we agree with the trial court that pursuant
to the Tort Claims Act, Dacus cannot be held personally liable for the Davises’
injuries. 

The Tort
Claims Act bars civil suits against any employee of the State who is acting
within the scope of his or her employment at the time the tort occurs, unless
the employee’s actions constitute actual fraud, actual malice, intent to harm,
or a crime involving moral turpitude.  S.C. Code Ann. § 15-78-70(a)-(b).  Here,
there is no question that Dacus was acting within the scope of her employment
when the accident occurred, and there is no assertion that her actions constituted
actual fraud, malice, or intent to harm.  Thus, Dacus cannot be held personally
liable for the injuries the Davises suffered. 

Furthermore, as is
typical with personal automobile policies, Dacus’s policy with Unisun only covers
injuries and property damage for which Dacus is legally responsible.  Because
Dacus cannot be held either personally liable to the Davises or legally responsible
for the Davises’ injuries or property damage, Unisun likewise has no responsibility
to the Davises.  We therefore find the trial court did not err in granting summary
judgment in favor of Dacus and Unisun.

AFFIRMED.

HEARN, C.J., HUFF and KITTREDGE, JJ.,
concur. 

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.